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KOLPAK v. BELL
August 14, 1985
JOSEPH KOLPAK AND THERESA KOLPAK, ADMINISTRATORS OF THE ESTATE OF JOHN KOLPAK, PLAINTIFFS,
RICHARD BELL, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Getzendanner, District Judge:
MEMORANDUM OPINION AND ORDER
This civil rights action was brought by Theresa and John
Kolpak, administrators of the estate of their son, John
Kolpak. The case is now before the court on the motion for
summary judgment of nine of the eleven named defendants. (An
order of default was entered on March 8, 1983 against
defendant Larry Sims. Fed.R.Civ.P. 55(a). Defendant Jesse
Johnson has not yet been served and is not a party to the
present motion.) The motion is granted in part and denied in
In the first count of their three-count amended complaint,
plaintiffs claim that the treatment their son received while
in defendants' custody deprived him of his rights under the
first, fourth, fifth, and fourteenth amendments of the federal
constitution. As a result, plaintiffs allege that defendants
violated 42 U.S.C. § 1983, 1985, and 1986. In the second and
third counts, plaintiffs allege that this treatment violated
their son's rights under Illinois statutory and common law
principles. As administrators of John Kolpak's estate, they
seek declaratory relief, compensatory damages of seven million
dollars, and attorney's fees and costs.
The events leading up to John Kolpak's tragic death and the
filing of the present action began when he was admitted to the
Waukegan Developmental Center ("WDC") in Waukegan, Illinois.
The WDC, run by the Illinois Department of Mental Health and
Developmental Disabilities ("IDMHDD"), is a state institution
equipped to provide care for severely mentally retarded
adults. Built in 1975, the WDC consists of five Units, a main
administration building, and a schoolhouse arranged around a
circular grass field. Each Unit consists of ten Homes, each
containing a kitchen, two bathrooms, living and dining areas,
a day room off the kitchen, an outdoor patio, a utility room,
and four bedrooms.
From six to nine persons reside in a Home.
On March 31, 1981, John was admitted to Unit 1, Home 9 of
the WDC, where he shared a bedroom with two other residents.
By July 18, 1981, after numerous, less serious reported
injuries, John Kolpak had died of a severe beating sustained
while in the custody of IDMHDD employees. Plaintiffs filed
this action on July 29, 1982 against various named and unnamed
employees and agents of the IDMHDD. All of the defendants are
sued both in their individual and official capacities.
The parties do not dispute the events leading up to John's
institutionalization. John was born in Chicago, Illinois on
October 26, 1953. At the age of seven years, he was diagnosed
as severely retarded. Also at that age, as a result of disease
and other physical disorders, John lost the ability to speak
a recognizable language. John was thereafter characterized as
"nonverbal," which means he could understand and respond to
verbal instructions in English and Polish, but could
communicate his needs only through sounds and hand and body
movements. Because of John's disabilities, he was denied
admission to the Chicago Public Schools, and attended special
schools between ages 12 and 25.
At the age of 25, John underwent testing directed to
determining a suitable living situation for him. Theresa and
John Kolpak, entering their mid-fifties, were concerned about
their future ability to care for their son and sought an
appropriate residential facility. After testing was concluded
on March 30, 1981, plaintiffs concluded that the WDC was a
readily available, suitable institution for John. Neither
party asserts that John himself knowingly or voluntarily chose
to enter WDC. On March 31, 1981, John was transported to the
WDC by ambulance. He was assigned to Unit 1, Home 9, which was
characterized by defendant James McKinley as a home for
"problem residents." Several defendants admit that John did
not pose disciplinary problems. (Amended Answer ¶ 17.)
John's treatment while at the WDC is the subject of this
action. The present factual record of the course and
professional adequacy of that treatment is spotty at best.
Thus, it is important to keep in mind the procedural posture
of the case. As defendants have moved for summary judgment,
they have the burden of showing that there is an absence of
any genuine issue of material fact and that they are entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(c);
Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct.
1598, 1608, 26 L.Ed.2d 142 (1970). This is so even though
plaintiffs will eventually have the burden at trial of showing
their entitlement to relief by a preponderance of the evidence.
In scrutinizing a motion for summary judgment, a court must
draw all reasonable inferences in favor of the non-movant.
Hermes v. Hein, 742 F.2d 350, 353 (7th Cir. 1984); Korf v. Ball
State University, 726 F.2d 1222, 1226 (7th Cir. 1984). In
addition, a movant may not simply question the factual accuracy
of the non-movant's pleadings. If the movant does not adduce
evidence tending to controvert those pleadings and to establish
entitlement to judgment as a matter of law, the non-movant is
not obligated to produce evidence in order to defeat the motion
for summary judgment. Herman v. National Broadcasting Co.,
Inc., 744 F.2d 604, 607 (7th Cir. 1984), cert. denied, ___ U.S.
___, 105 S.Ct. 1393, 84 L.Ed.2d 782 (1985). These principles
concerning the burden of proof are especially important in a
case such as this where the factual record is replete with
omissions relevant to crucial elements of defendants'
arguments. See, e.g., Adickes, 398 U.S. at 157-158, 90 S.Ct. at
B. Defendants' Duties at WDC
The parties have provided the court with portions of several
defendants' deposition testimony. That evidence and the
pleadings illuminate the roles and responsibilities of the
defendants. At the relevant
times, defendant Richard Bell was a Service Area Coordinator
of the IDMHDD. In this position, Bell supervised the Unit
Administrators of Units 1 and 2 of the WDC. (Bell Dep. at
10-11.) It appears from Bell's deposition that his supervisory
responsibilities did not include direct review of every event
occurring in the various Homes. Rather, Bell would have
regular sessions with the Unit Administrators. (Id. at 28.) In
addition, Program Coordinators and Home Managers would
occasionally meet with Bell. (Id. at 10-11, 28.) Reports from
the Unit Administrators would include any indication "of any
problems or major difficulties." (Id. at 11.) Bell explains, "I
would get general reports about how programs were functioning
but not in detail unless there was a problem, and then I would
get significant detail." (Id. at 27-28.) In addition to holding
direct meetings with subordinates, Bell would review Home
records as part of his supervisory tasks. Such records include
so-called Special Injury Reports and Special Incident Reports.
(Id. at 62.) (The court will refer to these reports simply as
injury reports and incident reports. A description of the
reports will be provided below.) According to Bell, after such
a report had been completed, "[e]ither I would review them or
my administrative assistant would review them and bring those
to my attention that he felt were even vaguely questionable."
Defendant Robert Day was the Unit Administrator for Unit 1
at the times relevant to the complaint. Day testified that his
responsibilities included protection of the health and safety
of from 80 to 120 mentally retarded adults and the supervision
of from 120 to 126 employees. (Day Dep. at 6.) Bell testified
that Unit Administrators supervised Home Managers (Bell Dep.
at 10-11), and this is consistent with Day's description of
his duties (Day Dep. at 51). Day indicated that he reviewed
injury reports as a matter of course. (Id. at 50.) It is also
clear that he reviewed incident reports (which were kept in the
Home for the Home Manager's use), talking to the Home Manager
about a specific report "[i]f it require[d] it." (Id. at 51.)
Finally, Day could and likely did make specific decisions about
Home routines. For example, Home Manager Larry Hudson testified
that Day probably was responsible for the decision to do extra
"body checks" on John as a way of locating the source of his
injuries. (Hudson Dep. at 30.)
Defendant Larry Hudson was the Home Manager for Unit 1, Home
9 while John resided there. (Hudson Dep. 28-29.) Hudson's
deposition reveals that his duties included supervision of the
technicians. (Id. at 54-55, 60-61.) It is also clear that,
perhaps unlike Day and Bell, Hudson's job brought him in
frequent contact with the Home residents, since Hudson often
made entries in the Home logs and observed John in person.
(See, e.g., id. at 40, 42.) Thus, Hudson's supervision of the
daily Home activities was close. When asked whether he read the
special chart directed to determining the source of Kolpak's
injuries, Hudson said he probably did, noting, "I wanted to be
aware of everything that was happening." (Id. at 38.)
Defendant John Miller was a Program Coordinator during the
relevant period. Plaintiffs provide no other description of
his duties. Miller states that he served primarily as Home
Manager for Home 7, and was Program Coordinator for Unit 1,
Home 9 on July 18, 1981 solely because of the rotating weekend
schedule for Program Coordinators. Miller stated that as
Program Coordinator, he does not come into contact with
residents' records. Defendant Arnold Wolochak was a Social
Worker for John's Home. His tasks included pre-admission
counseling and counseling of verbal residents. (Wolochak Dep.
at 5-7.) Thus, he did not counsel John, since John was
nonverbal. (Id. at 5.) It is also clear that Wolochak's duties
did not include supervision of residents at the WDC.
Plaintiffs claim that each of these defendants is
responsible for John's death in one or more ways.
Specifically, plaintiffs claim that some defendants' care for
John was grossly negligent. For example, according to
plaintiffs, Canty's emergency medical care or the technicians'
completion of special injury or special incident reports was
professionally inadequate. Additionally, plaintiffs allege
that defendants recklessly ignored the series of injuries
sustained by John before the night of his fatal beating by
failing to document the injuries and failing to take minimally
adequate protective measures. Finally, plaintiffs claim that
defendants conspired to conceal evidence of their
To assess the accuracy of these allegations, the court must
review the history of John's short stay at the WDC. These
facts are elicited primarily in Larry Hudson's deposition. In
that deposition, Hudson is questioned on the various reports
documenting noteworthy events in John's life. These reports
include the special injury and incident reports mentioned
above, as well as the house and medical logs.
Special incident reports were used to document every unusual
occurrence, including injuries, while special injury reports
were for documenting all injuries. An injury should be noted
in both incident and injury reports. (Day Dep. at 49.)
Normally, a technician or nurse would complete these reports,
since they were most frequently on hand to make the
observation. (Bell Dep. at 62.) The exact circulation of the
reports is unclear. Injury reports appear to have been given
to the Unit nurse for review, then to the Unit Administrator,
then to "medical services," and finally to the "facility
director." (Day Dep. at 50.) Bell also reviewed these reports.
(Bell. Dep. at 62.) Incident, but not injury, reports were
retained in the Home for the use of the Home Manager. (Day
Dep. at 51.) (Of course, as mentioned above, incident reports
should duplicate the information contained in the injury
reports.) The house log was a journal kept in the Home in
which employees would note all unusual incidents and special
instructions. The medical log was also kept in the Home, and
contained notes of medical treatment. (Hudson Dep. at 32.)
In his deposition, Hudson refers frequently to these
documents. Sometimes it is unclear to which document he is
referring, since the court has not been provided with the
deposition exhibits or the logs and reports. However, Hudson's
testimony does provide a useful chronology of John's three and
one-half months at the WDC.
John's first documented injury is found in the medical log
in an entry dated April 14, 1981. (Hudson Dep. at 32-33.) That
entry, by Hahn, indicates that when the first shift came on
duty that morning, John was found with a bloody lip, but no
apparent bruises or cuts. The next entry in the same log,
signed by mental health technician Linda Chatman, reveals that
on April 17, 1981, an x-ray of John's right hand was taken.
(Id. at 33.)
No other details on this incident were contained in the
medical log, although details are provided in a document
referred to as "Canty Group Exhibit 2." This document, which
remains unidentified, contains this notation for April 17,
Drowsy and staggering. Noted right hand swollen
and infected abrasion on upper surface. Dr.
Goldman notified 2:15 p.m. Ordered x-ray. Mary
(Id. at 34.) After that entry is another indicating that John's
parents had visited him at 2:00 and noticed his swollen right
hand. In this same log is an entry that Theresa Kolpak visited
John on April 22, 1981. (Id. at 35.) On April 23, Larry Hudson
made the following entry:
Mrs. Kolpak called me today and expressed concern
about the swelling and bruising on John's hands,
arm, lip and stomach. I informed her that a
report would be made. A report will be made and
she will be kept informed of any future
(Id. at 36.) Hudson could not remember if he did contact the
nurse, but testified that is what he usually would have done.
(Id. at 36-37.)
On April 26, 1981, an Arthur Thompson noted in Canty Group
Exhibit 2 that, "John's body check was made. I found the same
marks as yesterday. A report made." (Id. at 37.) There is no
indication as to whether these "marks" had any relation to the
injuries noted on April 14, 17, or 22.
A May 4, 1981 entry in Canty Group Exhibit 2 indicates that,
"At 9:45 Mrs. Kolpak came to visit John, and John had to be
taken to the hospital. John was taken to St. Therese Hospital
for x-rays for his left hand. There was slight swelling."
(Id. at 38-39.) Later that day, another entry reveals that,
"John was taken to his room to sleep and the staff took his
shoes and socks off. It was then noticed that John's feet, toes
and ankles were bruised and swollen. Nurse was notified." (John
was taken to see a doctor for these injuries on May 5, 1981.)
Further below this entry is another entry made at 2:30 p.m.:
Effective today and until further notice John
will be on a one-on-one staff observation
assignment during his waking hours. Also
effective today third shift will be making
nightly body checks at the beginning and end of
their shift along with the first and second
A May 5 entry indicated that John had been taken to see a
doctor, according to Hudson for the injuries observed on May
4. (Id. at 41.) Also on May 5 is a note that Theresa Kolpak
called asking about the results of John's x-rays "yesterday."
Hudson was unable to remember what those x-rays were for. (Id.)
On May 8, 1981, according to Canty Group Exhibit 2, John saw a
doctor for bruises and swelling in both ankles. (Id. at 42-43.)
Apparently John also suffered from blood in his urine at
some point. Hudson remembers that problem and that John made
frequent trips to the urology clinic. (Id. at 48.) Canty
testified that on July 14, 1981, John flinched when touched in
the kidney area. (Canty Dep. at 78.) She stated, "I just knew
he had kidney complications." It should be noted that the July
19, 1981 autopsy report of the Lake County Coronor's Office
confirms that John sustained multiple fractures with internal
injuries and hemorrhage to the left kidney, with blood in the
urine. (Amended Complaint ¶ 30; Defendants' Answer to Amended
Complaint, filed 6/20/84, ¶ 30.)
Not counting the incidents of blood in the urine, the logs
discussed in Hudson's deposition may document as many as eight
injuries from March 31 through May 8, 1981. This number may in
fact have been higher, since the evidence suggests that the
staff was either not noticing or not reporting evidence of all
injuries. For example, in two cases, injuries were reported
only after John's mother brought them to the staff's
attention. In addition, Hudson testified, when asked about
omissions in the medical log, that "a lot of the staff there
at the facility just don't know the correct way of documenting
information like that." (Hudson Dep. at 35.) When asked about
recording of orders in the appropriate logs, Hudson further
testified that not all orders are recorded; "things like that
happen quite often." Because the court has no evidence on the
cause of blood in John's urine before July 18, 1981, it cannot
determine that this was further evidence of abuse.
John's last injury allegedly occurred sometime between the
evening of July 17 and the morning of July 18, 1981. (Amended
Complaint ¶ 30.) Defendants contend that defendant Larry Sims
(against whom a default has been entered) was responsible for
the fatal beating. (Defendants' Memorandum in Support, filed
7/1/84, at 12.) Jay G., a friend of John's and a Home 9
resident, testified that he saw Sims beat John. (Jay G. Dep. at
5-6, 9.) Defendants, in their answer, admit that the coroner's
report indicates external trauma to have been the cause of
John's death. All of the defendants who have answered have
denied beating John.
Because the evidence supports defendants' theory that Sims
beat John sometime during the third shift between July 17 and
18, 1981, the court must determine whether the moving
defendants had any indirect responsibility for John's death.
The court has already described generally the duties that
defendants owed John by virtue of their employment with
IDMHDD. In addition, several defendants were questioned
specifically on their personal knowledge of John's stay at
Service Area Coordinator Bell was questioned in his
deposition about the predictability of the fatal attack:
A. There was nothing in those reports that would
have prevented or indicated that such a savage
attack was going to take place on him.
Q. Perhaps not a savage attack, but was there
anything that might have indicated that there was
a pattern of abuse emerging?
A. I could not see a pattern of abuse. There was
really no pattern to the incidents.
(Bell Dep. at 109.) There is no evidence of whether Bell
properly exercised his supervisory duties with regard to John;
such duties included the review of the special injury and
incident reports, as well as the receipt of "significant
detail" regarding any "problems." Rather, the court is told
only that from the reports, Bell could not detect a pattern of
Administrator Day probably had some responsibility for
ordering special "body checks" on John. A full body check
occurs when a staff member views the entirely unclothed body
of a resident. (Hudson Dep. at 21.) According to Hudson, a
full body check is done every day at every shift change and
whenever a resident goes on an outing. (Id. at 20-21.) Hudson
provided the following description of the procedures for
carrying out body checks:
Q. So at the beginning and end of each shift all
the students are undressed completely?
Q. And they are in their rooms?
A. In the privacy of their own rooms.
Q. And that goes on every day?
Q. And the incoming staff would do a body check
with the ...